The Centinela Valley Union High School District and the Centinela Valley Secondary Teachers Association (CVSTA) are parties to a collective bargaining agreement (CBA) that includes the following provision:

The CVSTA President will be released from 40% of his/her assignment in order to participate in district/school meetings, educate/train staff, visit school sites, improve community relations, and perform other functions necessary for carrying out his/her duties.

This provision, Section 12.19, has been included in successive CBAs since, at least, the 2004-2005 school year.  Full-time classroom teachers in the District are typically assigned to teach five periods, with a sixth unassigned period used for preparation.  Full-time counselors are expected to manage a caseload of 500 students.  Generally, when the District implemented Section 12.19, it would release the CVSTA president from teaching two of his or her teaching periods if he or she was a teacher or reduce the CVSTA president's caseload to 300 students if he or she was a counselor.  CVSTA presidents never had their salaries reduced as result of these reductions.

During the 2010-2011 school year, Elizabeth Setterlund, a physical education teacher, was the CVSTA President.  From the beginning of the 2010 school year until April 2011, the District released Setterlund from two instructional periods per day.  During the released periods, Setterlund attended meetings with representatives from the union and the District to discuss possible changes to employee health benefits, participated in committee meetings held at different school sites, met with employees to discuss grievance issues, and participated in contract negotiations.     

On January 21, 2011, the District sent CVSTA an invoice for approximately $312,000 to be paid within ten days of receipt.  The invoice represented the total amount of compensation paid to CVSTA presidents during Section 12.19 release time since the 2001-2002 school year.  The District cited Education Code section 44987 as its authority to collect the reimbursement.  The parties met twice after CVSTA sent the invoice.  At one meeting, the reimbursement issue was discussed.  On April 14, 2011, the District sent CVSTA a letter stating that it would terminate Section 12.19 release time effective April 18, 2011.  It reiterated its demand for the $312,000, plus an additional $11,000 paid to CVSTA President Setterlund between January and March 2011. 

CVSTA filed an unfair practice charge with PERB.  PERB's Office of the General Counsel issued a complaint alleging that the District violated the EERA when it (1) requested reimbursement and (2) unilaterally terminated Section 12.19 release time without prior notice and an opportunity to bargain.  The Administrative Law Judge issued a proposed decision in which it dismissed as untimely CVSTA's objection to the District requesting reimbursement.  The Judge determined that CVSTA did not file its charge regarding the reimbursement until September 2011 despite receiving the reimbursement request in January 2011, thus it was untimely. 

The Judge also found, however, that the District breached its duty to bargain in good faith by terminating Section 12.19 release time without prior notice and an opportunity to bargain.  The District only gave CVSTA four days' notice of its decision to discontinue Section 12.19 release time, which the ALJ found did not provide CVSTA a reasonable opportunity to bargain. Even if the amount of time was reasonable, the ALJ found that CVSTA did not waive its right to bargain because a request to bargain at that point would have been futile.  The District filed a statement of exceptions, but PERB accepted and affirmed the ALJ's decision. 

The District argued that PERB lacked jurisdiction over the issue of release time because it is governed by Education Code section 44987, not the EERA, and is therefore outside the scope of representation.  Education Code section 44987 provides that the governing board of a school district shall grant an employee a leave of absence without loss of compensation for the purpose of enabling the employee to serve as an elected officer of an employee organization, but that the District may seek reimbursement from the employee organization.  As the ALJ noted in his decision, the CBA provision made no mention of Section 44987, nor was there any evidence that the parties intended that release time be governed by Section 44987.  Further, the CBA specifically provided for release time in order to participate in district/school meetings, school visit sites, employee trainings, and improvement of community relations, while Education Code section 44987 permits release time for the specific purpose of attending employee organization meetings.  PERB agreed with this reasoning, and added that the District never treated Section 12.19 leave as Section 44987 leave.  Education Code section 44987 was enacted in 1978, and Section 12.19 has provided 40 percent leave time since at least 2001, but the District never requested reimbursement until 2011. 

PERB also held that CVSTA did not waive its right to bargain over termination of Section 12.19.  The District argued that it provided CVSTA notice at its January 25, 2011 meeting that it would seek reimbursement for past release time and terminate granting this leave if the CVSTA did not reimburse the District.  In light of conflicting evidence, the ALJ found that, more likely than not, the issue of possible termination was not raised at the meeting.  Finding no basis to overturn this finding, PERB affirmed. 

Note: 

The issue of release time often arises at the bargaining table.  Here, the District argued that it intended the release time provision to be governed by Education Code section 44987, but the release time provision lacked any specific reference to section 44987.  The decision provides another lesson in ensuring that contract language in a collective bargaining agreement or an MOU is carefully crafted to achieve the intended purpose.  It is also important to note that in September 2013, AB 1811 was signed into law which expands release time rights under the Meyers Milias Brown Act (MMBA).  Under the MMBA, employers are now required to provide a "reasonable" number of employee representatives paid release time to engage in negotiations, testify before PERB in proceedings relating to a charge filed by or against the union, appear as a representative of the union before PERB, testify before a personnel or merit commission, or appear as a representative of the union before a personnel or merit commission.  Agencies that do not want to expand release time beyond the parameters of AB 1811 should consider referencing the law within any release time provisions.  

Centinela Valley Union High School District (2014) PERB Decision No. 2378, __ PERC ¶ ___.